Wrath of the angry left

How hard will Senate Republicans fight the Kagan Supreme Court nomination? Will legal lefties vent their anger at the White House for not picking a full-throated liberal progressives to battle Scalia and Alito?

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As a law professor, I probably shouldn’t make political prognostications any more than Karl Rove should teach my constitutional law seminar, but I’ll go out on a limb and say that as of her nomination day, Elena Kagan is as likely to be confirmed as any nominee in recent history, for five reasons.

First, President Obama has a larger Senate majority than any other president nominating justice in recent history, and all the ugly Senate confirmation battles (e.g., Bork, Thomas, and various ill-fated Nixon nominees) have come when the president and the Senate were controlled by opposite parties.

Second, President Obama met the opposition at least halfway by not nominating the members of the left’s wish list, like Diane Wood and Pamela Karlan, about whom the right had staked out especially strong opposition in advance.

Third, the right will not successfully depict her as a radical: the worst they can note so far is the underwhelming-because-it’s-2010 fact that she, like many law school deans, fought and lost a legal squabble with the military about the tension between (a) university policies barring sexual orientation discrimination and (b) military policy expressly requiring the firing of gays and lesbians for no other reason than their sexual orientation.

Fourth, as with health care, opposition from the left, whatever its merits, will not derail Democratic support in the Senate, based on the two liberal critiques levied so far: Harvard Law’s lack of diverse hiring is hard to pin on her role as dean, given that hiring occurs by vote of dozens of faculty, not by dean’s fiat; and her sole recorded non-liberal view is a broad view of presidential power, but as Kagan’s academic writings correctly cite President Clinton’s actions to note, presidential power is not inherently “liberal” or “conservative,” no matter how mad liberals may still be about President Bush’s excesses.

Fifth, even the right is praising her intellect (so there will be no traction for any attacks on that front, as with Harriet Miers) and her fair treatment of conservatives as Harvard Law dean (so there will be no traction for any charges that she will favor one side based on personal empathy, as the right argued about Sonia Sotomayor).

Some residual uncertainty exists because new attack points may arise from the right or the left, but because the White House floated Kagan’s name in advance, both sides have floated several major criticisms already, and none seem anywhere near powerful enough to derail the confirmation of Justice Kagan this summer.

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